Hammond, D. J.
When this motion was first made it occurred to me that the court had no jurisdiction to grant it, or that it involved the exercise of authority beyond the power of the court to enforce, if the jurisdiction be conceded. It may be assumed that the United States, whenever it comes into this court and brings its suit against a citizen, consents to submit to and carry out whatever decrees may be lawfully made against it in the ordinary course of the legal procedure. But we have no jurisdiction here to decree against the United States for the delivery up of its property, or of that of the citizen in its possession, or to order accounts against its executive agents, or to decree the payment by them of the money of the United States.
We certainly do not enforce contracts against the United States, although we have jurisdiction to enforce them in its favor. Section 1059 of the Revised Statutes'enacts that—
“ The court of claims shall have jurisdiction to hear and determine the following matters: First, all claims founded upon any law of congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.”
The case of U. S. v. Bostwick, 94 U. S. 53, was a suit in the court of claims founded upon a contract with the United States about the use and occupation of land and improvements thereon; and that of De Groot v. U. S. 5 Wall, 420, was a suit^in that court upon an arbitration award on a similar contract, though it was brought under a special act of congress, and held to be not properly brought on the award which had been abrogated by congress. The court there says of the rule that the United States cannot be sued for a claim or demand against it without its consent:
“ This rule is carried so far by this court that it has been held that when the United States is plaintiff in one of the federal courts, and the defendant has pleaded a set-off which the acts of congress have authorized him to rely on, no judgment can be rendered against the government, although it may be judicially ascertained that on striking a balance of just demands the government is indebted to the defendant in an ascertained amount. And if the United States shall sue an individual in any of its courts and fail to establish a claim, no judgment can be rendered for the costs expended by the defendant in his defence.”
[509]*509In U. S. v. Eckford, 6 Wall. 484, there was a suit in the court of claims for a balance alleged to be due a collector who had been sued by the United States in a district court, and had pleaded, as the statute allowed him, a set-off. The verdict was against the United States, and the jury certified that there was due him from the United States the amount sued for in the court of claims. It was held that neither in the original suit nor in the court of claims could there be a judgment against the United States for the balance. The court says:
“Where a party contracting with the United States is dissatisfied with the course pursued towards him by the officers of the government, charged with the fulfilment of the contract, his only remedy, except in the limited class of cases cognizable in the court of claims, is by petition to congress.”
In Schaumberg v. U. S. 103 U. S. 667, it was held not to be error, where the statute allows set-off to be pleaded, to refuse to find or certify a balance due from the government, although under some circumstances it may be proper to do so. It was said:
“Claims for a credit can be used in suits against persons indebted to the United States to reduce or extinguish the debt, but not as a foundation of a judgment against the government.”
In Hall v. U. S. 91 U. S. 559, it is said:
“Questions of the kind, where the United States is plaintiff, must be determined wholly by the acts of congress, as the local laws have no application in such cases.” See, also, Watkins v. U. S. 9 Wall. 759-765.
In the case of The Siren, 7 Wall. 152, it was said:
“The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried the ease, there is no distinction between suits against the government directly, and suits against its property.”
And the court, proceeding, uses this language:
“ But, although direct suits cannot be maintained against the United States, or against their property, yet, when the United States institute a suit they waive tlieir exemption so far as to allow a presentation by the defendants of set-offs, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem they open to consideration all claims and equities in regard to the property libelled. They then stand in such proceedings, with reference to the rights of defendants or claimants, precisely as private suitors, except they are exempt from costs, and from affirmative relief against them, beyond the demand or property in controversy.”
It was a case in which a prize vessel had damaged another by collision, the prize being in fault. When libelled at the suit of the United States in the prize court the owner of the damaged sloop [510]*510intervened and claimed his damages, and it was held that he was entitled to them. The effect of the principle we are considering was elaborately examined on authority with the above result. It was subsequently, in the case of The Davis, 10 Wall. 15, explained and confirmed. In that case a vessel and her cargo were libelled for salvage. The cargo belonged to the United States, but was not, when the suit was brought, in the actual possession of the United States, or its officers or agents, but in that of the master of the vessel, and the proceeds being in court, it was held that the claim for salvage could be enforced. The court said:
“ That rule * * * admits that the lien can only be enforced by the courts in a proceeding which does not require that the property shall be taken out of the possession of the United States. But what shall constitute a possession which, in reference to this matter, protects the goods from the process of the courts ? The possession which would do this must be an actual possession, and not that mere constructive possession which is very often implied by reason of ownership under circumstances favorable to such implication. We are speaking now of a possession which can only be changed under process of the court by bringing the officer of the court into collision with the officer of the government, if the latter should choose to resist. The possession of the government can only exist through some of its officers, using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with its actual possession. This, we think, is a sufficiently liberal definition of the possession of property by the government to prevent any unseemly conflict between the court and the other departments of the government, and which is consistent with the principle which exempts the government from suit and its possession from disturbance by virtue of judicial process.”
These cases are again further explained in Case v. Terrell,
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Hammond, D. J.
When this motion was first made it occurred to me that the court had no jurisdiction to grant it, or that it involved the exercise of authority beyond the power of the court to enforce, if the jurisdiction be conceded. It may be assumed that the United States, whenever it comes into this court and brings its suit against a citizen, consents to submit to and carry out whatever decrees may be lawfully made against it in the ordinary course of the legal procedure. But we have no jurisdiction here to decree against the United States for the delivery up of its property, or of that of the citizen in its possession, or to order accounts against its executive agents, or to decree the payment by them of the money of the United States.
We certainly do not enforce contracts against the United States, although we have jurisdiction to enforce them in its favor. Section 1059 of the Revised Statutes'enacts that—
“ The court of claims shall have jurisdiction to hear and determine the following matters: First, all claims founded upon any law of congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.”
The case of U. S. v. Bostwick, 94 U. S. 53, was a suit in the court of claims founded upon a contract with the United States about the use and occupation of land and improvements thereon; and that of De Groot v. U. S. 5 Wall, 420, was a suit^in that court upon an arbitration award on a similar contract, though it was brought under a special act of congress, and held to be not properly brought on the award which had been abrogated by congress. The court there says of the rule that the United States cannot be sued for a claim or demand against it without its consent:
“ This rule is carried so far by this court that it has been held that when the United States is plaintiff in one of the federal courts, and the defendant has pleaded a set-off which the acts of congress have authorized him to rely on, no judgment can be rendered against the government, although it may be judicially ascertained that on striking a balance of just demands the government is indebted to the defendant in an ascertained amount. And if the United States shall sue an individual in any of its courts and fail to establish a claim, no judgment can be rendered for the costs expended by the defendant in his defence.”
[509]*509In U. S. v. Eckford, 6 Wall. 484, there was a suit in the court of claims for a balance alleged to be due a collector who had been sued by the United States in a district court, and had pleaded, as the statute allowed him, a set-off. The verdict was against the United States, and the jury certified that there was due him from the United States the amount sued for in the court of claims. It was held that neither in the original suit nor in the court of claims could there be a judgment against the United States for the balance. The court says:
“Where a party contracting with the United States is dissatisfied with the course pursued towards him by the officers of the government, charged with the fulfilment of the contract, his only remedy, except in the limited class of cases cognizable in the court of claims, is by petition to congress.”
In Schaumberg v. U. S. 103 U. S. 667, it was held not to be error, where the statute allows set-off to be pleaded, to refuse to find or certify a balance due from the government, although under some circumstances it may be proper to do so. It was said:
“Claims for a credit can be used in suits against persons indebted to the United States to reduce or extinguish the debt, but not as a foundation of a judgment against the government.”
In Hall v. U. S. 91 U. S. 559, it is said:
“Questions of the kind, where the United States is plaintiff, must be determined wholly by the acts of congress, as the local laws have no application in such cases.” See, also, Watkins v. U. S. 9 Wall. 759-765.
In the case of The Siren, 7 Wall. 152, it was said:
“The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried the ease, there is no distinction between suits against the government directly, and suits against its property.”
And the court, proceeding, uses this language:
“ But, although direct suits cannot be maintained against the United States, or against their property, yet, when the United States institute a suit they waive tlieir exemption so far as to allow a presentation by the defendants of set-offs, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem they open to consideration all claims and equities in regard to the property libelled. They then stand in such proceedings, with reference to the rights of defendants or claimants, precisely as private suitors, except they are exempt from costs, and from affirmative relief against them, beyond the demand or property in controversy.”
It was a case in which a prize vessel had damaged another by collision, the prize being in fault. When libelled at the suit of the United States in the prize court the owner of the damaged sloop [510]*510intervened and claimed his damages, and it was held that he was entitled to them. The effect of the principle we are considering was elaborately examined on authority with the above result. It was subsequently, in the case of The Davis, 10 Wall. 15, explained and confirmed. In that case a vessel and her cargo were libelled for salvage. The cargo belonged to the United States, but was not, when the suit was brought, in the actual possession of the United States, or its officers or agents, but in that of the master of the vessel, and the proceeds being in court, it was held that the claim for salvage could be enforced. The court said:
“ That rule * * * admits that the lien can only be enforced by the courts in a proceeding which does not require that the property shall be taken out of the possession of the United States. But what shall constitute a possession which, in reference to this matter, protects the goods from the process of the courts ? The possession which would do this must be an actual possession, and not that mere constructive possession which is very often implied by reason of ownership under circumstances favorable to such implication. We are speaking now of a possession which can only be changed under process of the court by bringing the officer of the court into collision with the officer of the government, if the latter should choose to resist. The possession of the government can only exist through some of its officers, using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with its actual possession. This, we think, is a sufficiently liberal definition of the possession of property by the government to prevent any unseemly conflict between the court and the other departments of the government, and which is consistent with the principle which exempts the government from suit and its possession from disturbance by virtue of judicial process.”
These cases are again further explained in Case v. Terrell, 11 Wall. 199, where it was adjudged that no judgment for money could be rendered against the United States in any court other than the court of claims without a special act of congress conferring jurisdiction, and that the appearance of the comptroller of the currency and a receiver of a bank appointed by him, submitting, through the district attorney, to the decision of the court in behalf of the United States, could not confer jurisdiction. And in Carr v. U. S. 98 U. S. 433, they again came before the court, and their effect as adjudications was explained. It was there determined that the appearance of the district attorney and special counsel employed to represent the government in actions of ejectment brought against its agents in possession did not estop the government to deny the jurisdiction. So in Hart v. U. S. 95 U. S. 316, it was ruled that the government is not responsible for the laches or wrongful acts of its officers or agents, and they [511]*511cannot be set up as a defence in suits of the United States against a defendant.
These authorities, and many others I have consulted, appended in a note, have confirmed me in the impression I first had, that we have no jurisdiction to appoint a receiver of property in possession of the United States, no power to .enforce a surrender of it to a receiver, and no authority to call its agents into this court to account for its management of the property, no matter how the United States obtained the possession, whether through a decree of, this court, in which it was a plaintiff, or otherwise. And in answer to the complaint that the court itself raised the objection, it may be said that the federal courts always decline jurisdiction on their own motion whenever it appears that they have no jurisdiction of the subject-matter in controversy. It is particularly the duty of all courts to do so where this prerogative of the government is involved. 8 Bac. Abr. tit. “Prerogative,” (Bouv. Ed. 1861,) p. 106; Barclay v. Russell, 8 Ves. Jr. (Sumner’s Ed.) 424. The defendant seeks to bring this case within the principle of that of The Siren, supra. It was evidently clearly within that case w'hen first instituted, and so long as the property remained in custodia legis, and was in possession of a receiver of this court, we had full jurisdiction; and, if it had been so kept, there would he now no trouble about the jurisdiction. But whenever the defendant allowed it to pass from the control of the court as a fact, and into the actual possession of the United States, all power to relieve him here ceased from that moment, no matter what the intention of the court was, or of the parties, nor what the proper construction of the decree may be, nor what the rights of the parties under it may require, as against the United States.
It is impossible, in the nature of the case, for this court to retain control over it while it is in the possession of the United States or its agents, or for this court to wrest it from that possession, however much the defendant may be entitled to have that done. It does not alter the case to treat the United States as a receiver; for a claim founded on any breach of its duty in that behalf is as much beyond our jurisdiction as any other. If the decree had contained a stipulation to do just what the defendant contends its proper construction requires, the result would have been the same. We cannot enforce the stipulation. If it had been one of the stipulations that the United States would hold for this court and pay according to its decrees, the same difficulty would exist. But I do not think the decree subject to such a construction, there being no stipulation to that effect. It was, [512]*512in my judgment, a final decree eyidencing a contract between the parties. There is no reservation of jurisdiction to enforce the decree, and if there were it could not be carried put here. As between private parties their conduct might be construed as continuing the case open to enforce the decree; but the government cannot be so bound by the acts of its officers, as I have shown.
There can be, in this case, no jurisdiction to enforce any personal liability of the collector of customs. He is not our receiver and never was. He holds his possession under regulations of the treasury department, and as its agent. His accounting here is voluntary, and his misapprehension of his relations in the premises cannot give us jurisdiction. It is plain the remedy of the defendant is by application to the executive department to carry out the stipulations of the decree, or to the court of claims to enforce them, or to congress to relieve him.
Motion denied.
Note. Consult Thompson v. U. S. 98 U. S. 486, 489; U. S. v. Gillis, 95 U. S. 407, 412; Avery v. U. S. 12 Wall. 304; Bonner v. U. S. 9 Wall. 156; Nations v. Johnson, 24 How. 203; Pennington v. Gibson, 16 How. 65; Reeside v. Walker, 11 How. 272; Hill v. U. S. 9 How. 386; U. S. v. Brown, 9 How. 487, 500; U. S. v. Buchanan, 8 How. 83, 105; U. S. v. Boyd, 5 How. 29; Gratiot v. U. S. 4 How. 80, 112; U. S. v. McLemore, 4 How. 286; Milner v. Metz, 16 Pet. 221; U. S. v. Robeson, 9 Pet. 319; U. S. v. Ringgold, 8 Pet. 150; U. S. v. Clark, 8 Pet. 436; U. S. v. McDaniel, 7 Pet. 1; U. S. v. Ripley, 7 Pet. 18; U. S. v. Fillebronne, 7 Pet. 28; The Antelope, 12 Wheat. 546; Hugh v. Higgs, 8 Wheat. 697; U. S. v. Barker, 2 Wheat. 395; U. S. v. Hooe, 3 Cranch, 73; U. S. v. La Vengeance, 3 Dall. 297; Meier v. Railway, 4 Dill. 278; U. S. v. Flint, 4 Sawy. 42; U. S. v. Austin, 2 Cliff. 325; The Othello, 5 Blatchf. 342; S. C. 1 Ben. 43; U. S. v. Collins, 4 Blatchf. 142; U. S. v. Davis, 1 Deady, 294; U. S. v. Smith, 1 Bond, 68; Wilder v. U. S. 3 Sumn. 308; Mezes v. Greer, 1 McAll. 401; Elliott v. Van Voorst, 3 Wall. Jr. 299; Fendall v. U. S. 14 Court Claims, 297; Goodman v. U. S. 6 Court Claims, 146; 5 Am. Law Reg. 253; 11 Law Rep. (Boston,) 281.